Status of Stateless Fighters in International Humanitarian Law: An Overlooked Legal Dilemma

[Jyoti Singh is a member of the Statelessness Asia Pacific Research Network at the Peter McMullin Centre on Statelessness (University of Melbourne). She is an advocate and researcher based in New Delhi]

Understanding nationality and statelessness against the backdrop of armed conflict is crucial, given the mutually reinforcing relationship between the two. At present, more than 120 armed conflicts are ongoing globally, with several hundred million people living in conflict-affected regions. Although the main factors resulting in millions of individuals being or becoming stateless remain uncertain, in recent years, it is increasingly clear that discriminatory practices, arbitrary nationality requirements and other underlying human rights issues lie at the core of the causes of statelessness. In many instances, statelessness is not only a consequence of conflict but also a cause of the conflict, as reflected in the cases of Côte d’Ivoire, the Democratic Republic of Congo, and Syria.

It is therefore vital to analyze how international humanitarian law (IHL) frameworks either meet or fall short of meeting the protection needs of stateless individuals enmeshed in conflict. IHL becomes fundamental to this context, as in addition to offering humanitarian protection to individuals during an armed conflict, it also determines their legal status based on their role in hostilities. The group of people, mainly involved in hostilities includes civilians, combatants, medical personnel, non-state actors, including stateless fighters (NSAs), and persons hors de combat. IHL guarantees distinct rights and protections for all these categories of individuals, and apart from combatants, all others are treated as “protected persons” under the Geneva Conventions (GCs). The Combatants are entitled to prisoners-of-war (POW) status after being captured. However, the recent advent of new actors like foreign and dissident fighters has challenged the limits of IHL’s classifications and sparked a wide-ranging discussion about the scope of POW protection.

Members of the armed forces of a state or militias incorporated into the armed forces are considered as POW or combatants, under the International Armed Conflict (IAC), the Third Geneva Convention (GC III) and Additional Protocol I (AP I), wherever applicable. In contrast, where non-state actors participate in a non-international armed conflict (NIAC), they are given the fundamental protections only under the Common Article 3 (CA 3) of the Geneva Conventions and Additional Protocol II (AP II), wherever applicable. Unfortunately, neither of the two instruments recognizes the status of combatant and POW for non-state actors, including stateless fighters. This absence creates a profound gap in extending humanitarian protections available to the stateless fighters. For example, stateless fighters may be denied repatriation options, may be excluded from the privileges given to the POWs (consular access) and eventually be trapped in complex legal battles. The Arakan Rohingya Salvation Army (ARSA), which is composed of stateless Rohingyas, exemplifies this quandary in practice. They operate in NIACs and are not only prone to the inherent risks of armed conflict (death, injury and detention) but also counter legal precarity due to their lack of nationality.

Scholars like Alice Edwards, David Weissbrodt and Clay Collins, and Laura van Waas have shown that the stateless people are a marginalized community, subjected to systemic discrimination, as most states deny them the civil, political, economic, and social rights, which are reserved for their own nationals. While these scholars underscore the importance of the protection of stateless persons under international human rights law (IHRL), the predicament of stateless fighters in armed conflict and their ambiguous status under IHL has not been adequately addressed.

Against this backdrop, this blog contends that a crucial normative gap exists within IHL due to the absence of explicit legal recognition of stateless fighters. This gap leaves such individuals at risk of exclusion from the protections extended to the combatants and POWs. This post, therefore, looks at the framework of combatant and POW status in IACs, contrasts it with protections available in NIACs, and considers potential avenues to protect the stateless fighters as combatants or POWs.

Combatant Status and POW Status in an IAC

The GC III and AP I are the legal foundation for determining the status of a combatant and the entitlement to POW status. The combatants are the members of the armed forces of a party to the conflict, and they automatically qualify for POW status (GC III, Art. 4(A) (1)), upon capture. Apart from the members of the armed forces, volunteer corps, and militias that are incorporated into the armed forces of a state, may also be treated as combatants. provided they fulfill the conditions of responsible command, a fixed distinctive sign recognizable at a distance, carrying arms openly, and conducting operations in accordance with the laws and customs of war (GC III, Art. 4(A)(2); AP I, Art. 43–44).

It is very important for the captured fighters to get the protection of POW status, as it shields them from being persecuted for merely participating in hostilities. Alternatively, they may only get prosecuted for violations of IHL, such as war crimes. Dinstein rightfully notes in this context that the status of POW, constitutes a “combatant’s privilege,” ensuring that the mere act of fighting does not amount to criminal conduct under domestic law.

Combatant Status and Prisoner of War Status in NIACs

The picture is, however, different for stateless fighters in NIAC. Notably, AP II and CA3 of the GCs are the only provisions under IHL that provide protection to those participating in hostilities in an NIAC. Ironically, they do not extend the status of combatant and POW to the stateless fighters who are part of non-state armed groups (NSAGs). Nevertheless, they do have rights similar to those of other actors during such conflicts, but the lack of combatant status gives them only the most basic protections. They are tried for domestic criminal law of the state and may be prosecuted for treason, terrorism, or murder. Crawford and Pert argue in this context that in an IAC, NSAs are treated as POWs and combatants, if they fulfill the conditions mentioned in Article 4A (2) of the GC III and Article 43 & 44 of AP I, whereas NSAs and NSAGs only get fundamental guarantees mentioned in CA 3 of GCs and AP II, in an NIAC. This unevenness of the legal framework seems to be more of a political choice, as states must be apprehensive of the fact that granting combatant privileges to insurgents would confer legitimacy on armed opposition movements and consequently undermine the sovereignty of the state.

This creates an extra layer of vulnerability for the stateless fighters.  Stateless fighters cannot invoke their nationality for purposes of consular access, diplomatic protection, or eventual repatriation, unlike foreign fighters, as they do not have such a fallback. If captured, they may be prosecuted under the domestic law of the state, without the possibility of claiming POW protections, and may face indefinite detention, deportation dilemmas, or even refoulement to persecution, in violation of international human rights standards.

The Protection Gap for Stateless Fighters

As discussed earlier, there are no specific clauses under IHL pertaining to the status and rights of stateless fighters. This has serious ramifications for stateless fighters who are given the status of combatants, yet not given the treatment of combatants due to their lack of nationality. Even though Article 4 of the GC III and Article 43 of AP I do not require nationality as a precondition, the lack of explicit laws pertaining to the status of stateless fighters’ practically leaves them vulnerable to inhuman treatment. Since stateless fighters do not represent a state, they are treated as lesser combatants and are therefore constantly vulnerable to arbitrary imprisonment and poor legal representation when they are detained as prisoners of war.

Another significant issue faced by the stateless fighters is the complexity in their repatriation. As stateless fighters do not have the nationality of a state, they may not be repatriated under Article 118 of the GC III, according to which the prisoners of war must be released and repatriated without delay after the cessation of hostilities. Ironically, the 1954 and 1961 Statelessness Conventions were never drafted to attend to the context of armed conflict. Nor do they concentrate on resolving the practical dilemmas faced by stateless fighters: detention without prospect of repatriation, denial of POW rights, and the risk of indeterminate legal battles.

Conclusion

The stateless fighters underscore a serious normative gap within the IHL. While GC III and AP I do not formally require nationality for combatant or POW status in IACs, in reality, lack of state affiliation often results in inconsistent treatment, arbitrary detention, and obstacles to repatriation of the stateless fighters. The situation is even more precarious in NIACs. Due to the absence of combatant and POW status, stateless fighters receive only minimal protection under CA 3 and AP II, while being exposed to prosecution under domestic law.

The stateless fighters practically have to grapple with dual exclusion, from the protections of IHL and also from the diplomatic safeguards, leaving them most vulnerable. In this scenario, IHRL comes in to fill the void by ensuring humane treatment, prohibition of torture, and fair trial guarantees, etc. Nonetheless, stateless fighters remain a “forgotten category” whose legal uncertainty fuels their marginalization, without explicit recognition within IHL.

IHL must begin to tackle the status of stateless fighters, if it is to remain responsive to the realities of contemporary conflict. The protection gap can be narrowed down by clearer interpretive guidance, state practice of recognizing their combatant status in appropriate circumstances, and larger reliance on IHRL. Adoption of clearer frameworks for accountability, repatriation, and human rights protections for stateless fighters, in line with the Nelson Mandela Rules, may help mitigate the vulnerabilities of the stateless fighters. In the absence of such resolutions, stateless fighters will continue to suffer— neither fully excluded, nor meaningfully protected.